The poisoned chalice

If an employee is found to be drunk at work or under the influence of drugs,
OH may be called on to advise the right course of action, whether disciplinary
or rehabilitation, by Joan Lewis and Linda Goldman

In the aftermath of the festive season, many businesses face the employment
equivalent of morning-after blues. Historically, alcohol policies and equal
opportunities take a battering during the closure of each successive year as a
more liberal interpretation of the former generally encourages breaches of the
latter.

The 21st century employer now also has to cope with and try to prevent the
psychological effects of the onslaught of e-mail excesses, which currently form
a virtual epidemic. For this reason, health and safety aspects should be
considered in relation to all the manifestations of jollity that could cause
offence and injury of varying degrees to mind and body.

The demon drink

All OH professionals will, at some time in their career, be involved in
considering the effectiveness of company policies on alcohol abuse. Alcohol is
a particular problem because it is so closely linked with social festivity. Its
effects may be implicated in some forms of unlawful behaviour but as a drug, it
is perfectly legal. Its endemic use in the UK means that employers are, or
should be, constantly reviewing alcohol policies to ensure abuse is discouraged
and adverse effects of even moderate use are not carried into the workplace.

The ancient chestnut in employment law is whether a person who uses excess
alcohol is ill or evil. In other words, is alcohol use or abuse to be the
subject of medical or disciplinary procedures?

Most policies will have a tiered approach to alcohol use. If drinking is
permitted at all in working hours, the policy will define whether excess use is
to be misconduct or gross misconduct. The sanction will depend on the severity
of the offence. Misconduct may lead to disciplinary proceedings with a variety
of outcomes, ranging from counselling, warnings or dismissal. Gross misconduct
generally merits summary dismissal.

However, there are cases where evidence of persistent use of alcohol may
encourage the OH adviser to consider whether the individual should be treated
as if they were ill.

Most employers realise that a policy on drug abuse is a key requirement
today. Excepting that the use of illegal drugs is an offence in law itself, the
policy will otherwise mirror many aspects of the alcohol policy.

What shall we do with the drunken employee?

Save for any aspect of involvement with transport where prohibition of
alcohol at work may be almost mandatory, when considering how to deal with the
problem drinker, the employer needs to be aware that the issues raised are broad
ones of health and safety for the entire workforce.

The Health and Safety at Work Act 1974 requires employers to ensure so far
as is reasonably practicable, the health, safety and welfare at work of their
employees. This is reflected in the common law duty of care that employers have
towards all their employees. The needs of the problem drinker must be set
against the needs of his fellow workers who are entitled to a safe place of
work, and who could be put at risk by the behaviour of someone whose ability
and judgement are affected by drink.

The duty of care to the workforce is particularly high at times where drink
is sanctioned, such as at the office party. The party season is now well and
truly over, but employment tribunals will shortly begin to see the effects of
hastily convened disciplinary hearings dealing with recent forays into the
world of alcoholic generosity.

It is a curious fact that while dependency on alcohol is deemed to be an illness,
it is not, however, deemed a disability, since the Disability Discrimination
Act 1995 specifically excludes alcoholism. Indeed, the Disability
Discrimination (Meaning of Disability) Regulations 1996 state specifically that
addiction to or dependency on alcohol will not amount to an impairment under
the Act. However, paragraph 11 of the Guidance to the Act points out that it is
not necessary for a tribunal to consider how an impairment is caused. An
interesting effect of this approach is that liver damage resulting from
alcoholism may amount to a disability.

The way to deal with alcohol-related misdemeanours may be as a capability
issue if it appears that there is a dependency factor. The so-called one-off
incident of bad behaviour may be a conduct issue, some of which may well be
mitigated if bad behaviour was caused by excessive consumption of the boss’s
largesse at the office party.

OH may be called in to advise on the appropriate way forward.
Confidentiality should not be an issue, since the adviser need only give the
opinion as to whether conduct or capability proceedings should be used,
although if the latter, it would be helpful to follow a designated procedure to
encourage participation in an alcohol rehabilitation programme.

If the employee needs help, they may be prepared to waive confidentiality so
that they can be helped rather than disciplined. An employee who fails to
comply with a drink rehabilitation programme may find themselves dismissed for
an alcohol-related misdemeanour or absence, simply because they have failed to
comply with the programme.

The right to drink

An employer may need to know if a person is under the influence of alcohol.
However, since the Human Rights Act 1998 came into force, employers may not use
random alcohol (or drug) testing without taking into account the possible
restraint this may place on the employee’s right to privacy under Article 8 of
the European Convention on Human Rights. The rule of thumb is that employers
should ensure the right to carry out alcohol or drug testing is contained in
the contract of employment and is only implemented in the work context to
ensure safety and to protect the employer’s reputation.

An employee who refuses to submit to a contractual alcohol test will need to
show that the request for the test was in some way arbitrary or oppressive if
he was dismissed as a result of the refusal.

More ways than one to pose a risk

There is anecdotal evidence that many employees with access to a computer
are spending more than an hour a day dealing with social and personal e-mail.

While it is arguable that there is a corresponding reduction in time on
personal telephone calls and chatting with fellow employees, it is increasingly
clear that misuse of the internet may be just as addictive in some cases as
alcohol or drugs.

The internet seems to have the same disinhibiting effect as alcohol, in that
many of the messages or images relayed around the office or directed to a
specific person are more offensive than might have been inferred from the
general behaviour of the sender.

The compounding disinhibition of alcohol may be the underlying cause for the
increase in complaints of harassment by e-mail, particularly in the run-up to
the festive season.

Employers need to be certain that policies on misuse of the internet are
clearly stated, implemented and applied consistently. Misuse of the internet
should be seen as a disciplinary issue, both in terms of the amount of personal
use, if any, which is permitted during working hours, as well as the content of
material which is promulgated, downloaded or disseminated.

Employers should have policies that define the way in which personal use of
the internet is permitted, with reference to time involved and the nature of
use.

Sanctions for misuse must be stated clearly in the disciplinary procedure
and applied evenly, and provisions for supervision should be described in
detail. The OH team will be alert to the debilitating effects on any recipients
bombarded with offensive e-mail and may be called upon to advise on the
aggravating effects of a drink or two on what may turn out to be distinctly
unfunny when viewed in the cold light of sobriety.

Conclusion

An alcohol, drug abuse or e-mail policy, like a puppy, isn’t just for
Christmas. It needs supervision, regular updating, review and even-handed use.
It can be a good friend with some proper training to avoid accidents or even
disasters during the course of the whole of the year.

Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head
of training and education for ACT Associates & Virtual Personnel. Joan
Lewis is the senior consultant and director of Advisory, Consulting &
Training Associates and Virtual Personnel, employment law and advisory service
consultancies and licensed by the General Council of the Bar in employment
matters under BarDirect.

Syme was a school caretaker, dismissed summarily for being
drunk at work. Had the employer taken medical advice, it would have learned
that the drinking was symptomatic of manic depression. The dismissal was
therefore deemed to be unfair.

This case is an example of the court finding that misconduct
caused by alcoholism should be treated as a medical issue, rather than
disciplinary. It is unlikely that, in the present political climate, a school
caretaker would survive an incident of drunkenness although correct procedures
would need to be followed to ensure that, if dismissal was the appropriate
sanction, all proper steps were taken prior to dismissal in the form of proper
investigation.

Morris was dismissed for persistent short-term sickness
absence. He appealed his dismissal and put forward the underlying explanation
for his series of absences as the fact of his alcoholism.

The tribunal’s approach was that the employee had made a
conscious decision to drink. He had therefore decided he would not be sober
enough to attend work. "If he is so inebriated that he is unable to attend
work, he must suffer the consequences."

Angus Council v Edgley, EAT
289/99, IDS Brief 722, 14

Edgley was not given the benefit of the Council’s policy on
alcohol abuse whereby employees with drinking problems would be assisted in
seeking professional help and rehabilitation. He was dismissed for taking time
off work to go drinking. The dismissal was unfair since the employer dealt with
a medical issue (capability) as if it were disciplinary (conduct). It was not
appropriate to deal with this as a ‘one-off’ disciplinary matter when the
employer knew from his disciplinary history that he was alcohol dependent.

Morse v Future Reality Limited,
54571/95, ELABriefing 8/10, 2002, 167

Male employees downloaded and distributed pornographic material
from the internet to one another and sent some of the items to Morse. She
succeeded in her claim of sex discrimination by way of harassment. The fact
that the male colleagues thought the material was amusing was irrelevant.

A person suffers sexual harassment by experiencing matters
which are personally offensive. The employer was unaware of the extent of the
problem until Morse raised her complaint. It is not known from the case report
what sanction was applied to the other employees, but it would have been
reasonable for the employer to consider whether dismissal or a final warning
was appropriate to each offender.

O’Flynn was a weekend drug-taker employed by AACC Ltd as a
customer care assistant. AACC Ltd’s business is in the transport sector and
although O’Flynn was not a driver, her job description made it clear that she
could be required to assist drivers manoeuvring their vehicles and to serve hot
drinks on moving coaches.

The company had a zero tolerance policy on alcohol and drug
abuse and had introduced random screening of employees as part of the policy.
The policy made it clear that a positive drugs test would lead to disciplinary
action. The policies and procedures were well communicated and incorporated
into contractual obligations.

O’Flynn was fairly dismissed when she tested positive in a
random test. Moreover, the right to private life as set out in the Human Rights
Act was not breached by the company’s random testing policy.